27 Va. 355 | Va. | 1828
The Judges delivered their opinions.
This i3 a case arising on our Law of Descents, and involving a most important principle of construction. Anthony Gardner had a brother who had one daughter, (Mrs. Davis,) and a sister who iud two sons, James and Fruncís Rowe, and two daughters, Mrs. Boyd and Mrs. Shackleford. The sister and brother of Anthony (iardner died before him, leaving these children. Mrs. Boyd and Mrs. Shackleford, also died in his life-time'; the first leaving two children, the last six; and then Anthony Gardner died intestate and without issue, leaving estate real and personal. The question is, how shall this estate be divided between these eleven relations? For the Plaintiff, (Mrs. Davis,) it is contended, that our Statute has no provision by which we can adjust the proportions of the claimants, that we must therefore call in the aid of the Common Law, and by ihet/w representation's, placing Mrs. D. in the shoes of her father, give her half the estafe, and divide the other moiety among the rest. For iba Defendants it is contended, that the Common Laio has been ntierlj. abolished by the Statute, and can in no question of descents bo invoked; that the Statute embraces this ease, and under it the infiel ilrnicc shouH he divided into five portions, one of which should bo given to ouch of the nephews, one to the niece, and the other two io be divided between the descendants of Mrs. Boyd and Mrs. Shackleford. The Chancellor decreed to this effect, from which the appeal is taken. Perhaps a few preliminary remarks may enable m the beiier to understand the force, effect and extent of our Statute.
From the date of our existence as a Colony, to the Revolu¡ion, the Common the descent of real estates, was the Law of the land. Of this Law the first Canon, as noticed f y Blacks lone, is, that inheritances shall lineally descend to the issue of the person who last died actually Seised, in infinitum, but shall never lineally ascend: 2dly. That, the male issue shall be admitted before the female: 3dly, That where there are two or more males in equal degree, the eldest only, shall inherit but the females «II together: 4th. That the lineal descendants, in infinitum of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would have done had he been living: Mb, That on failure #f the lineal descendants or issue, ofthe
This matter was at length brought before the Law Courts, and they decided that the bonds of the Administrator were of no avail, and he not compellable to make distribution at all. And as often afterwards as the Ecclesiastical Courts attempted to compel a distribution, a prohibition was granted. - In this state of things, the Statute of 22d and 23d Car. 2, commonly called the Statute of Distributions, was passed, at the instance of the Civilians. It is laid down in many cases, that the reason of passing this Law, was to end the contention between the Common Law and Ecclesiastical Courts; that its main scope was to enlarge the jurisdiction of the latter; that it was borrowed from the Civil Law, and to bo construed according to the rules of that Code. The provisions of this Law stand in striking contrast with the Canons of Descent of the Common Law. Primogeniture, the preference of males over females, the blood of t.he first purchaser, the rule that property never ascends, the exclusion of the half blood; all these fundamental rulos of the Commo:
I.ct us enquire, 1st. Whether this Act did not intend to nLoIi.di, and has not. in fact abolished, the whole of the Common .Law regulating Descents? 2d. Whether wtr Art. has not for its basis the Statu to of Distributions and the Civil Law? As to the first: It seems to me, that no one can read our Statute, without being struck at once, with the direct .and diametrical opposition, in which all its enactments stand to the Canotw «f the Common Law. The very-first rule, “that estates shall descend and pass in parcenary to the kindred, male and 'female, .of the mtestafe,” destroys, at a single blow, three favorite and eh-pri-slred principles of the Common Law; primogeniture, sole seisin, and tlic- preference of males. In defect of children, and their descendants, wo give the estate to the father, By the Common Law, it would sooner sscheal, than ascend lineal-We no to the bk.o'l oí' ¡he first in 1he case of infants, and that by a Law sfi'er 17S5 ) Á‘ Common Law, land would escheat sooner than descend in any however near of kin, if net of the blood of the first purchaser. We give collaterals of the half blood, kdf portions. The Common Law excludes them wholly. With u:-„ bastards may inherit and transmit inheritance, on the part of the 'notin'!'. At Common Law, they ■'tre utterly incapable of inhodtane;'. We say, that win re there is no kindred, paternal or materna], the inhmitnuee shall go to Ihe wife or husband of the intestate. At Common Law, husband or wife can never inherit from each other. Do not those instances ¡prove, that the framers of our Law, looked at the Common L.nv Canons of Descent to avoid, not so imitate? To pull down, not to build up? All its principles are violated; its land-marks removed; * is fences broken down; its traer- nhli rev-pod. While these marJ-.n
Let us enquire now into the origin of our Statute, whether it is not substantially taken from the Statute of Distributions and the Civil Law? I think this enquiry will strengfben considerably the position taken, that the sixteenth section meant to establish it as a general rule, that equals in degree of kindred take equally, but where part of the class is dead leaving issue, such issue take per stirpes. The most important provisions of our Statute of Distributions, (as taken from the Revisal of 1748,) are, that after debts, &c. are paid, the surplus of the personal estate (except slaves) of every dying intestate, shall be distributed among the wife and children, or children’s children, if any such, or otherwise, to the next of kin to the dead person in equal degree, or representing their stocks, according to their respective legal rights, and the 3-ules and limitations herein-after expressed, and not otherwise: that is to say, one-third to the wife of the intestate, the residu'e to and among his children in equal proportions, and if any of them be dead, io such person or persons as legally represent them If no childdren, nor their legal representatives, one half to the wife, the other i.o the next of kin who are in equal degree, and those who legally represent them; if no such kindred, the whole to the wife: No representation admitted among collaterals, after brothers’ and sisters’ children. There is also a provision taken from 1 Jac. 2, ch. 17, that if, after the death of the father, any child shall die intestate without wife or children, the brothers and sisters shall have his estate equallj7' wilh the mother. This Statute, I have said, was taken from the Civil Law, and must be construed according to its rules. All the numerous cases upon the Statute lay this down. Thus, when the Statute says, that in defect of children the estate shall pass to the next of km, we must look to the Civil Law to ascertain who they are. In Lloyd v. Tench, 2 Ves. sen. 213, Sir John Stkange says, “some things are so clear they need only to be mentioned: as first, in all questions on the Statute of Distribution, the rule to go by, in computing the degrees of proximity of blood, must be taken from the Civil Law: and on this ground and foundation, stand all
There are other reasons which satisfy me, that the Statute of Descents meant to conform in the main points to the Act of Distributions. In the printed report of Prepared Bills, made by tho Committee of Revisors to the General Assembly, at page 16, wo find the “Bill directing the course of Descents,” (marked in that report, chapter 20;) and on the same page commences the “Bill concerning Wills; the distribution of Intestates estates, &e.,” (marked in that report, chapter 21.) This last Law enacts, that after debts, ■ &c., and the portion of the widow, the surplus of the personal es-
Another piece of evidence has lately come to my knowledge, which, as tending to show the understanding of the Re-visors, has strengthened and confirmed the opinion 1 had already formed; and which I think it not improper to state. Having some faint recollection, that in a conversation with Mr. Jefferson formerly, he had mentioned that he drew the Law of Descents, I thought there might be something among his papers casting light on its origin. I therefore wrote to a gentleman, who has access 1o his papers, requesting him to send me an extract of any thing he might find on that subject. I received from him the following passage taken from a memoir of himself, written by Mr. Jefferson, and which, I understand, will probably be published during the present year. I may, therefore, I presume, appeal to it as matter of history. It will be recollected, that of the committee of five appointed to make the Revision, Mr. J efeei::;on, Mr. W vtiis, and Mr. Pendleton, where the only members who acted, though the whole plan was settled before the death of Mr. Lee, or the resignation of Mr. Mason. The memoir says, •‘The oilier two gentlemen and myself divided the work among.us. The Common Law and the Statutes to 4th Jumes 1st, (when our separate Legislature was established,) was assigned to me; the British' Statutes from that period to the present day, to Mr. WwrnE, and the Virginia Laws to Mr. Pendleton. As the Law of Descents, and the Criminal Law, fell of course within my portion, I wished ‘¡he commit loo to settle the leading principles of these as a guide for >ne in fiamh'g them: and with respect to the first, 1 proposed to a
How, then, would such a ease as ours be decided under these systems? We must remember there are eleven claimants descended from a brother and sister of the intestate in the manner before slated. This is a ease of collateral kindred called to the inheritance. We must reeollect, that in the collateral line, representation extends only to the brothers’ and sisters’ children of the deceased, under the Statute of Distributions and the Civil Law, while with us it is unlimited. To test the principle, then, we must look for eases within the range of representation with them; that is, cases where brothers and sisters of the intestate concur, or where a part of them being dead, their children concur with the survivors; or ivhere all the brothers and sisters being dead, leaving children in unequal numbers, those children concur. There can need no case to show, that where brothers and sisters concur alone, they take equally. Walsh v. Walsh, Pre. Che. 54. ,it. has three brothers; one dies, leaving three children, another two, and a third live; then Jl. dies intestate. Pei Lord ICtjupeiu On time taken to consider of this case, distribution shall be per capita and not per stirpes; and that all the children should have equal, because none take by way of representation, but all in equal degree, as next of kin- Johnson v. Bury, Bunb. Rep. 157. B. had several brothers and sisters, (some of the half, and some of the whole blood,) who all died in his life-time, leaveing several children; and now, upon a Bill for distribution of his estate-, it was decreed j)er tetam curiam, that the distribution should bf per capita,, and not. per stirpes; for, now they do .not take by representation, but as next of kin. But, if one of the bro ihers or sisters o1’ B. bad survived him, the children of the rest must have taken only by representation; that is to say, per stirpes, and the case of Wall and TheeJhurn, was cited bv Ibc Court. W. died
• This case presents, for the first time, the question, whether the nephews and nieces, and grand-nephews, and grand-nieces of the in testate, süccceding together (his mother, brothers and sisters being-dead,) shall, under our Statute of Desceñís, take per capita, or in, stirpes: and if in stapes, whether (he deceased brothers and sisters, or the living nephew’s, and nieces who have left children, shall lie taken as the stocks.
It is admitted, that the Statute does not in terms provide for such 3 case. These questions must, therefore, he determined .upon the best construction which we are enabled (o make of theNsatute itself, aided by a due attention to the Laws of Descent and Distribution, in force when it was enacted.
The Common Law of Descents looked for (he heir of an intestate, first amongst his children or their dessc.7idan.fs, if any there were. If (here were none such, then amongst his brothers, and sisters, an-d
These general rules, which applied universally to all descents, even those of Gavelkind and Borough English, were directed iu their application to each particular case, by various other rules, namely; the maxim paterna paternis, materna maternis, which restored estates descended on the part of the father to the paternal, in utter exclusion of the maternal kindred, and vice versa; that in all descents to collaterals, the male lines throughout should be preferred to the female lines; that the half-blood should be wholly excluded; that males should be preferred to females, and amongst males the oldest; and that females should succeed together in
In respect to the distribution of personal estates: before the Statute oí Ed. 3, by the theory of the Law, the personal estates of intestates devolved upon the Ordinary, to be applied to pious uses. In practice, the Ordinary usually distributed them to the wife and children, and kindred of the intestate, according to the customary Law,
These Statutes, except in the preference given by them incidentally to the husband and father, in the manner already stated, conformed in their provisions, in the main, with the 118th and 127th Novels of Justinian, which called the father, mother, brothers and
Some views which have been taken of the case under consideration, make'it desirable to understand the full effect of these Statutes of Distribution, and the principles on which the are founded. And what do as to the succession of descendants? Do they in all cases where any, or all of the children are dead leaving descendants, take in stirpes, all the descendants of each child respectively representing him, and taking the share which he would have taken if alive? Or, if all the children are dead leaving children in unequal numbers, do these grand-children succeed per capita, taking/«¿re proprio as next'of kin? And, if some of these grand-children are dead leaving.children, do the latter take in stirpes, with the graud-childrcn living, representing the deceased grand-children as their stocks?'
It is remarkable, that these questions have never occurred in England in such a form as to make them the subject of a direct judicial determination; a circumstance which, I think, can only be accounted for by the supposition, that it has been universally considered there, as a question suscepúble of no doubt, and that-in all cases, descendants must lake as children, or as representing them. This is the-precise and' literal effect of the terms of the Statute: “distribution shall be made equally to the children, or such persons as represent them, if any he dead,” carefully avoiding any terms which might be construed to direct the distribution to be made to descendants in equal degree, and confining the claims of all descendants to children and such as represent them, that is, stand in the place, and entitle themselves to tlie rights, which the deceased children would have had if alive. This opinion is intimated by Chief Justice Worth, in Carter v. Crawley, T. Ray. Rep. 496, and plainly de dared as his by Lord Harbwicke in Wyth v. Blackman, 1 Ves. sen. 196. And if there was any room for doubt, upon the words of the Statute, an examination of the Civil Law upon this point, to which the Statute was intended to eohform, and according to which it is construed in all doubtful cases, would remove it.
In the original frame of the Civil Law, as found in the 13 Tables, no representation’was allowed in any ease, either amongst descend- or collaterals: The that the nearest in excluded the more remote, being inflexibly enforced in all cases, and this by force of two very succinct Laws: the one “ fnlesldorum hc~
Before the time of Justini&n, these Laws'were variously modified, and representation amongst descendants allowed, but upon what principle, I do not find distinct!}' stated; but, no representation was ever allowed amongst collaterals, until Justinian allowed it, as a single exception to the general rule, in favor of brothers’ and sisters’ children concurring with father, mother, brothers or sisters living. By the 3 ISth Novel he utterly abolished degrees amongst descendants, in terms, and declared, that “if any of the descendants of the deceased should die, leaving sons, or daughters, or other descendants, they shall succeed in place of their own father, and shall he entitled to the same share of the intestate’s estate, which their father would have had, if he had lived;” which necessarily led up to the children as the stocks, to which representation was ultimately to be made. And there is no point in the Civil Lav, in which all Civilians more unanimously agree, than in this construction of the Novel;
I think it is perfectly clear, that in the succession of descendants, the principle óf representation has precisely the same effect in the Civil Law, the Statutes of Distributions, and the Common Law of Descents; that all descendants, except children, (who alone can claim y uré proprio, and take jjer capita,) must come into the succession, as representing their parents, through all their grades, no matter how many, up to the children of the intestate as the stocks according to which, partition or distribution is to be made.
As to the succession of ascendants and collaterals, the Statute of Distri nutions provides a general rule, in strict conformity with the original rule of the Civil Law, that distribution shall be made “ amongst the next of Join in equal degree,” in all cases, except that the father is still preferred, as he was by the Ancient Law, to the mother; and the brothers and sisters, and the children of such
In the only case in which representation is allowed amongst col laterals, that of brothers’ and sisters’ children, where there is living a mother, brother or sister, it has been held, that if there be no mother, brother or sister living, they cannot take by representation to their parents, so as to vary the proportions amongst themselves, or to exclude others in the same degree, or to avoid being excluded by others in a nearer degree. Thus, in such case, they are excluded by grand-fathers and grand-mothers, and concur, and take equally per capita, with uncles and aunts, all of whom would be excluded, and the children of brothers and sisiers take, if there were a mother, brother or sister alive.
These seemingly inconsistent consequences, arise out of the peculiar frame of the Laws which are alike in the Civil Law, and the Statute of Distributions. The general rule is, that the next of kin amongst collaterals, shall lake equally, and exclude the more re-
Here lot us notice the circum-hmces in which the Statute of Distributions, and the Common Law c,f Descents, so far as the principle of representation operates in the succession of collaterals, agree, and in what they differ, in the only case in which the Statute of Distributions admits of represen tai ion amongst collaterals, they agree proel ely. The representation is m.-de in that case to the .-’lildrea o- the nearest ancestors oi the bar-míe, as in the case of ■ ¡cscents. In all other cases, by forre of the Common Law principle of representation in desceñís, the descend mts, however remote m degree, of the nearest ancestors of the intestate, representing the. children of such nearest ancestors, exclude the descendants, however near in degree, of more remote ancestors. But, the Statute of Distributions calls together the descendants of ancestors in different degrees, provided those descendants are in their own persons in equal degree; and the descendants of ancestors in a more remote degree, who arc themselves nearer in degree, exclude those of ancestors in a nearer degree, who are themselves in a more remoto • degree. Thus, suppose a grand son of a brother, the son of an uncle, and a great uncle. By the Common Law of Descents, the grandson of the brother would exclude all the rest, but under the Statxsto of Distributions, all would succeed per capita together, or ifthorcwere an uncle, he would exclude the grand-son'of a brother: the latter of- whom would exclude the former under the principles of the Common Law of Descents. In short, so far as the principle of representation was concerned, the Common ;Law of' Descents appli od the same rule to the succession of collaterals, as to that of descendants, preferring him who was nearest in degree by representation, no matter how remote, in his proper person, in all cases, to him even if nearer degree, in his proper person, whose common ancestors w'as more remote than the common, ancestor of the person
Such were the principles of our Laws of Descent and Distribution, when our Statute of Descents was enacted; bearing these in mind, let us proceed to examine its provisions.
It directs that the estate of an intestate, “ shall descend, and pass in parcenary to his kindred, male and female, in the following course: To his children, or their descendants, if any there be. If there be no children, nor their descendants, then to his father. If there be no father, then to his mother, brother and sisters, and their descendants, or such of them as there be. If there ho no mother, brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, the other to the maternal kindred, in the following course: That is to say; first, to the grand-father. If there be no grand-father, then to the grand mother, uncles, and aunts on the same side, and their descendants, or such of them as there bo. if there be no grandmother, uncle, nor aunt, then to the great grand-fathers, or groat grand-father, if there bo but one. If there he no groat grand-father, then to the. great grand-mothers, or great grand-mother, if there bo but one, and the brothers and sisters of rhe grand-fathers, and grandmothers, and their descendants, or such of them as there be. See. 10. And so on, in other cases, without on-!, passing to the nearest, lineal male ancestors, and for the want of them, to the lineal female ancestors, in the same degree, and the'descendants of suck male and female lineal ancestors, or to such of them as there be.” The llih, 12th, and 13th sections provide, that no person other than children of the intestate shall inhere, ?,< 'íes ■•:% ■■"■sc, and capable in Lato to take as heirs, at the time oí une intestate’s death; that if there ho no maternal kindred, the whole shall to the paternal, and vice. versa: and if no kindred, to the wife or husband, or to their kindred: and that the half-blood shall take half portions, and if all be of the half-blood, the ascendants (if any) shall have double portions. Then comes the 14th section, (the 16th in our present Statute,) which provides, “ And when the children of the intestate, or his mother, brothers and sisters, or his grand-mother, uncles and aunts, or any of his lineal female ancestors living, with the children - of his deceased lineal ancestors, male and female, in the same degree, come into the partition, they shall take per capita; that is to say, by persons; and when apart of them being dead, and apart living, (he issue of those, dead have right to partition, such issue.
These are all the provisions of the Statute, which designate the persons to take, and proportions in which they are to take. None of these extends in terms to the case at bar, for here is no child, nor mother, bi other, sister, grand-mother, uncle, aunt, or female ancestor, or child of a deceased male or female ancestor, to come into the partition; in which eases only, does the Statute prescribe the mode of distribution; and the same rule which is applicable to this ease of nephews and groat nephews, (no mother, brother .or sister being alive,) will apply to grand-children and great grand-ehildrcn, (no child being alive,) and to all eases in which a female ancestor (beyond a grand-mother) living, and her children, or their descendants, of the half-blood come into the partition, all of which arc equally unprovided for by the terms of the Statute. There is extreme, and indeed .insurmountable difficulty, in deducing any general rule from the terms of the Statute itself, by which to determine these pretermitted cases, without supposing that some principle of the prc-cxisting Laws of Descent or Distribution, modified by the Statute, still remained in force, and provided for them. The provisions of the Statute designating the persons to take, would, in all such cases, entitle all who were so designated, to take equal shares, unless there were something in the Statute itself, which, upon a just construction, would afford a different rule, or unless some such extraneous rule controuled this construction. This rule, that all who are designated to take, shall take equally, unless some other rule is prescribed, is dictated by common sense, is the settled and clear rule in the construction of Deeds and Wills,
Notwithstanding the repeated extra-judicial suggestions, that our Statute intended to abrogate the Common Law of Descents in loto, I am persuaded that, in this, as in all other cases, the object of our Legislature was to reform what was obnoxious to natural equity, and the spirit of our institutions in the Common Law, leaving such parts of it as was not liable to those objections, in full force, and not to abrogate it entirely, and establish a new system, as if no such thing as the descent of the estates of intestates to their heirs had ever been heard of in Virginia. There are many proofs in the provisions of the Statute itself, to show that not only the Common Law principle of representation, but many other principles of the Common Law of Descents were considered as in ful! force, except so far os they were modified by provisions of the Siulute, introduced for the purpose of so modifying, and not of abrogating them in ioto. Some of the principles of the Common Law of Descents, to wit, that oípalerna,paternis, materna maternis, and the preference of male to female lines amongst collaterals, and of males to females, and of the eldest amongst males, and the exclusion of ancestors and the half-blood, were founded on Feudal Principles, the policy of which was to preserve estates entire or contrary to natural equity, and being inconsistent with the of our institutions, were effectually abolished. But the Common Law principle of representation was founded on the broad principles- of natural equity, and in no degree inconsistent with the policy of our institutions, since it has no tendency to preserve estates entire, and therefore was admitted in all cases in the Common Law of Descents. Nor can I feel the force of Judge Blackstone’s remark, that this mode of representation was a necesaary consequence of the double preference of the males to females, and of the eldest amongst the males; for, it existed in the Civil Law in the case of descendants, where there was no such preference, and also in the Common Law, whilst it al
There are other provisions in this Statute, and in others enacted very shortly after it, which, l think, decisively prove that this principle was considered as unimpaired by our Statute. We have seen, that the bar to all his descendants, created by the disability of an intermediate ancestor, through whom the inheritance must he transmitted to them, was founded solely upon this principle of unlimited representation. In the Civil Law, where the next of kin took jure projyrio as .such, a child who would bo next of kin, if his father was dead, would-take as such, although his father was alive, b his father was disabled to lake by alienage, or was condemned for ovime which disabled him. 1 Domat, 583. The Authors of our -Statute inserted in it a provision, “ that in making title by descent, i¡ sh.di bo no her to a demandant, that any ancestor through whom ho derives his descent, from I ho intestate, is, or hath been, an alien. Dastards, also, shall be capable of inheriting, and transmitting •i nheril-iucc on the part of their mother, in like manner as if they iiad been lawfully begotten of such mother.” Provisions utterly ■ s.ipcrfii eus, but upon the supposition that the Common Law rule of
The provision in the Statute modifying the disability of alienage, is very remarkable. It not only took away the impediment at Common Law, to the descent to the issue of án alien, b3r reason of his disability in the case of a linca] descent, in case such an intermediate alien ancestor was dead, but even if he were alive. This is the clear effect of the expression, “is, or hath been an alien;” thus making, in this single instance, an exception to the principle of the Common Law of Descents, that the issue of an intermediate ancestor alive, who might by possibility have been capable of inheriting, could never inherit in the life-time of such ancestor, whether he were disabled by alienage, or otherwise, or not; and in this, conforming tp ihe principle of the Civil Law, as before stated.
Another provision, affording an additional proof to the same effect, is that respecting advancements to be brought into hotchpot. “And when any of the children of the intestate, or their issue, shall have received from the intestate in his life-time «113* real estate by way of advancement, and shall choose to come into the partition with the ether parceners, such advancement shall be brought into hotchpot with the estate descended.” The Statute of Distributions only required advancements made to the children of the intestate, and not such as were made to the issue of such children\
Another provision of the Statute also shows, that the Common Law principles of descents were considered as still in force, except so far as they were inconsistent with the provisions of the Statute. By the Common Law of Descents, if the eldest son died, in the lifetime of his father, leaving his wife enseint of a child, and then the father died, and a younger son entered, as he had a right to do as heir, and atenvards the child of the eldest son was born, this child was the heir of the father, and displaced the title of the younger son, and so. of an elder and vonnger brother of the intestate, or any oth-
It seems to me, therefore, that the scheme of the Revisors, who prepared this Statute, was to modify the Common Law of Descents by abrogating all of its obnoxious principles, and modifying others, so as to them to the of our those not abolished, to operate in full force, where not modified, and when modified, in their modified form. Accordingly, they abolished the rule paterna paternas, materna maternas; the preference of male to female lines, and of males to females, and of the eldest male, and admitted ascendants and the half-blood, partially. They adopted the Common Law principle of representation explicitly, in its most important effect, in the designation of the order in which classes of kindred should succeed, leaving it to operate as at the Common Law in all eases, with a limitation upon it, in a single case imposed by the Statute, which I shall presently advert to: they modified the Common Law principles as to the succession of posthumous children the impediments to a descent by the disability of an intermediate ancestor', and in respect to advancements; and they left untouched the Common Law principle in relation to descents in parcenary, which allowed to the eldest parcener, and in some cases to her representative, the choice of the lots in the partition,
Considering the Common Law principle of representation as not being abrogated, it might, at the first blush, seem to have been unnecessary to insert in the Statute any provision in relation to the eases in which the persons coming into the partition, should takeper capita, or per stirpes, and it is necessary to enquire for what purposes the provisions of the 14th section were introduced.
The Statute having admittted ancestors to the inheritance, and pre
There is in the terms of this section itself, an internal, and I think, conclusive proof, that the purpose which I attribute to it was the only object of that provision, so far as it directed the female ancestor living, and the children of deceased ancestors, male and female, in the same degree, to take per capita. This omits the case of the children of a living female ancestor coming into the partition with her alone, or with her and the children of deceased ancestors in the same degree. If that provision had any conceivable object, other than that which I attribute to it, there was precisely the same reason for embracing the children of living, as of deceased ancestors, in the same degree, since they were related to the intestate in the same degree and manner, to all intents and purposes. If it was intended to prescribe a rule of partition for a particular case, or a general rule, by putting an example, to be applied to all analogous cases, upon the supposition, that no rule existed, independant of the Statute, in either case there was an absolute necessity, in order to avoid absurdity and confusion, to embrace the children of living, as well as of deceased ancestors, in the same degree, in that provision. This distinction between the children of living and deceased ancestors, was made designedly, and ex industria. The Authors of the Statute, collecting a ^ ^le cases *n w^‘c^ several might succeed together, and selecting from them particular persons, specify, in the very tenns of 2d, 4th sections, the cases of children, mother, brothers, sisters, and grand-mothers, uncles and aunts, and passing the 8th, (which designated the brothers and sisters of grand-fathers and grand-mothers,) because it fell within the general terms of the 10th section, adopt the language of the 10th, (which embraced all the former cases in its general terms, and embraced also the descendants of all ancestors in the same degree, living and dead,) with this exception, that the provision of the 14th section, whilst it embraces the children of the deceased, excludes those of the living female ancestors: which could not have been done without a motive, for otherwise it was natural, that they should have adopted the terms of the 10th section literally, as they did those of the 2d, 4th and 7th, and embraced in the provisions of the 14th section the children of living, as well as of deceased ancestors. The weight of this observation is
If the children of all ancestors in the same degree, living and dead, were included in this provision, then, by force of this provision aíone a representation to a common ancestor would be prohibited in all cases, without any reference to any principle of the Common Law. If the children of a living ancestor were excluded from the terms of this provision, then the Statute would prohibit a representation to a deceased common ancestor only; and in that case, the principles of the Common Law of Descents would prohibit a representation to the living ancestors, since no one can represent and take the share of any one who is alive and can take it herself. This view of the provisions of the 14th section cannot be avoided by the supposition, that in no case could a child of a common ancestor come into the partition unless at least one of the common ancestors (the male) were. dead. If a woman had two children by a first, and one by a second husband, and one of the two were to die intestate, the surviving brother of the whole blood, the mother and the brother of the half-blood would succeed, although the latter would not be a child of any deceased ancestor of the intestate: and although this particular case is embraced in the lerms of the 14th section, yet cases might occur in which not one of (hose succeeding, Would be the chiI
I confess, that (he necessity which I felt io ascertain the true object of inserting this word, as well as of every other word in the ¡Statute, led me to » course of reflection, which has changed my first opinion; for, following blindly, and without examination, the incautious and extra-judicial suggestion so often made, that our ancestors, in their extreme hostility to the Common Law of Descents, had abolished it in all its parts, root and branch, I at first thought, 'hat the Statute not having provided in all cases for the proportions iu which estates should descend, in such as were not provided for, all who came into the partition, were entitled to take equal shares, according to the rule in the construction of Dceds and Wills, and the Civil Law rule applied to the very case of the Laws regulating the succession to intestates’ estates. And this would certainly be the case, unless that construction was controulcd by some pre-existing principle of the Common Law of Descents, or some provision of the Statute, or by both combined, the latter of which will, I think, •' found to ho the fact.
If the sole object of the 14th section had been that of prohibiting any chum by representation to a deceased common ancestor, that, would have been fully effected by the declaration, that the children of the deceased ancestors of the intestate, and a living female ances- -or, coming into the partition, should take per capita; that is, up- ■ m the supposition, that the Common Law principle of representation was in full force, since that would have supplied the rule, in case some oí them were dead, and some were living, or all dead: and that, precisely to the same effect as the rule prescribed by die Statute iu ¡¡articular cases. And if that object had been the only one, that part of the section which embraces the children of the intestate, and provides that if a part of those designated to take per ■■apita be dead, and a part of them living, the issue of those dead
Here I think I might, and perhaps ought to cease, but the opinion of Judge Tucmon, to which it is said the public opinion and practice have conformed, (although I have never heard of any case having actually occurred, except this,) has been so much urged as proper to govern our decision, that it may not be amiss to examine it. He lays it down as a general rule, as to which he does not seem ¡o have imagined there could be any doubt, that “ where several persons succeed at the same time in equal degree, they s.hall take-per capita, but if a part, be more remote than others, those more remote' shall succeed in stirpes.” And he puts the case of six grand-children, by different deceased children.in unequal number’s, and says-they would take per capita; and this he says, is in conformity to the Civil Law. And in .a note to Blackstone’s Commentaries, where the author states the case in the Civil Law, of rie
As to the question, whether it was intended to abolish, in toto, the Common Law of Descents, enough has already been said. The construction given by Judge Tcckjsk to our Statute, by which grandchildren (all the children being dead) would succeed per capita, is clearly in opposition to the Civil Law, the Statute of Distributions, and the Common Law, all of which concur in this particular, and in principle in this particular only, although in a few cases amongst ''.oliaterals, the opposite principles of the Civil Law, and Statute of Distiibutions conforming to it, and the Common Law of Descents, produce the same practical cficcis, i3 'Lawn at right angles to
The Decree should be reversed, and the estate divided in stirpes, considering the deceased brother and sister óf the inhestare as tlm ultimate slocks.
The Legislature, in framing the Statute of Descents, seem io have pursued the policy of the Civil Law, in applying the same, provisions to the descent of lands, and the distribution of personal property.
Our course of distributing the personal subject, and that of Greal. Britain, were nearljj the same; both conforming, in a great degree, to the Civil Law. In England though, and in this-country before the Revolution, the piinciples of thc'Feudal System, engrafted on our Laws, made it impossible that lands should go as'personals. In fact, the course of descents, as regulated by Feudal principles, had been established long before ther-e was any Statute for the distribution of personal property.
The principles of our Revolution, though, required that those Feudal doctrines of primogeniture, preference of males over females, that lands should not lineally ascend, the rules as to the half-blood, and the blood of the first purchaser, &c., should be done away, and that the course of descents should conform to this new state of things. In other words, that the realty and pcrsonalt}*- should go together to the same persons, and that both should go, not according to the former course of descents of lands, but (with some modifications,) according to the former course of distribution of personals, pursuing the supposed preference, arising from natural affection. Had the Legislature simply provided, that lands should thereafter descend to the same persons, who would have been entitled to them, if it was personal property, according to the Statute of Distriributions, it would have been a Statute of Descents in all respects, porfectly suited to our new political existence, and one, in all its essential attributes, very similar to the Statute that was passed. Hence I conclude, that that Statute was drawn very much from our Statute of Distributions, the Civil Law, and the decisions of Courts on that subject, and being diametrically in conflict with almost every principle of the Common Law, founded on the Feudal System in relation to descents, it was entirely to repeal or abrogate that Law on this subject. This seems to have been Judge Tucker’s opinion, in his commentary on this Statute, as well as the opinion of this Court, expressed in the ease of Browne v. Tnrherville, 2 Call, 390. It seems to he admitted, that the case before us, if not a casus omissus, is not expressly provided for by the Statute; and the consequence is, that we must cither consider the. case as one to which we cannot extend the Statute, and must, there - fore, determine it according to some pre existing Law, remaining.
This is a case for the partition of real, and the distribution of personal estate of an intestate; and if it cannot be decided under the Statute, what antecedent Law is to regulate us in disposing of these two subjects?
Our Statute of Distributions is now a very short one. 1st vol. V. L. p. 382. It is to be found, originally in the Act of 17S5, and now in the 29th section of the present Statute of Wills, Intestacy and Distributions, which, after providing for the wife, declares,“That the surplus shall be distributed in the same proportions, and to tho same persons, as lands are directed to descend, in and by an Act of the-G-eneral Assembly, entitled, “ An Act to reduce into one the several Acts, directing the Course of Descents.” If that Act, though, does not provide for the case, either expressly, or by proper construction, and if we are to look to antecedent Laws, either as to the persons to take, or the proportions in which they are to take, to what must we look? It seems to me, we cannot look to the Common Law as to the personal subject; for, that never regulated the distribution of personal estates. If that Law, therefore, is still in force, and applies to the real subject now before us, and will be the rule of decision as to it, still it seems to me, wo cannot look to it as to the personality; for, it is to go with the land only, where it can go to the same persons, and in the HAvaeproportions, as lands are to go under the Act. If we cannot ascertain by the Act, as well the persons, as the proportions in which they are to take, but must look to the Common Law for cither, the provision in the Law, as to the personalty, seems to fail. If we should even find, by looking into the pre-existing Statutes of Distributions, and applying them to this case, that they would carry the personalty to the samey?e?%scms, and in the same proportions, as the Common Law would carry the reality, still it would not, I apprehend, be the Common Law that would give the rule, but the former Statutes of Distributions, if we consider them as so far unrepealed. But, should it be found, that the Statute of Distributions would carry the personalty to different persons, or in different proportions, then we must sever the personalty from the real131, or apply the Common Law rule to the personalty. It is true, there is a very apparent intention in the Legislature, that the realty and personalty should, in all cases, go together to the same. persons, and in the same proportions; but, that is evidently also under the idea, that every case was provided for by the Statute. Had it been suggested to tlw Legis
But, there is no such clause expjrcssly directing ns the one way or the other. On the contrary, the Legislature believed they had provided for every case that could arise; and it seems to me, that this is So apparent, that we cannot resist the conclusion, that as well the Common Law as the Statutes of Distribution, were considered as entirely abrogated; and it therefore becomes our duty, if that can be done on any fair principle of construction, to extend the Act to the case before us.
Before going into this enquiry, however, let us attend a little more minutely to the Common Law course of Descents, as contrasted with that of the Civil Law, from which latter the Statute of Distributions, and the Act under consideration, have been drawn.
The first Common Law rule of Descents is, “That inheritances shall lineally descend to the issue of the person who last died actually seised, in infinitum, but shall never lineally ascend.” 2 Bl. Coni. SOS. This is contrary to the Civil Law; was founded on feudal principles, and is entirely altered by our Law.
A second general Rule or Canon is, “ That the male issue shall be admitted before the female.” 2 Bl. Com. 212, 2X3. This is contrary to the Civil Law, and is absolutely put an end to by our Statute.
Thirdlji, “Where Ulereare two or more males, in equal degree, the eldest only shall inherit; but the females altogether.” Ih. 214. This rule of primogeniture was also against the Roman Law, and is abrogated by our Statute,
If then, in any case, we are obliged to resort to the Common Law for the rule, we cannot decide the case still, according to the Common Law; for, we must pay no attention to these Rules or Canons, but must in fact, so far decide the case, as if no such Rules or Canons had ever existed. But, these Rules or Canons have had a most important effect on the doctrines of the jus representationis of the Common Law, so as to make it what it never would
This mode of representation, he says, is a necessary consequence of the double preference given by our Law, first, to the male issue, and next, to the first born among the males; to both of which the Homan Law is a stranger. For, if all the children of three sisters were in England to claim per capita, in their own right, as next of kin, without respect to the stocks, and those children were partly male and partly female, then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; wherers, by dividing the inheritance according to the slocks, the rule of descents is kept uniform. The issue of an oldest son excludes all, as the son himself would, if living: hut fhe issue of two daughters divide the inheritance between them, provided their mothers (if living,) would have done so, and among these several issues, or representatives, the same preference of males and of primogeniture prevails.
This preference given to males, and this Common Law rule of primogeniture, made it necessary then to vary the jus representationis as to real estates, from what it was by the Civil Law, and as applicable to personal estates, by the Statute of Distributions; but, as this reason for the variance is done away by our Act; and as that Act, when we come to examine it, I think will be found to provide for a succession in capita, where the parties to take are classed in the same degree,- and only resorts to the right of representation where some of them are dead, leaving issue, and some living, I cannot perceive how it is, that such essential changes in our Law, affecting the very reason in which the variance in the Common Law right of representation, from the Civil Law right, is founded, shall nevertheless be considered as leaving that Common Law rule in full force.
The case before us,, is one of collateral kindred, the children of a brother and sister; and if it had been a case of the distribution of personalty only, and the Act of Descents never had passed, but the case had been decided on the Statute of Distributions, cither in Eng
But, suppose it had. been a case in the direct descending line, and a case of personalty, and decided in England, under the Statute of Distributions; and the case was one between children of children, the parents being all dead, how would it be decided?
In the Notes on Justinian, by Coopek, page 394, I find these observations on 118th Novel: “The three first chapters of this Novel,” says he, “deserve the attentive consideration of the reader, not only because they contain the latest policy of the Civil Law, in regard to the disposition of the estates of intestates; but because they are the foundation of our Statute Law in this respect.” He refers to Holt’s Cases, 259, 1 P. Wms. 27; Prec. in Ch. 593, and Sir Thomas Raymond, 496. And ho says, “They are still almost of continual use, by being tbe general guide of the Courts of England, which hold cognizance of distributions, in all those cases in which our own Laws have either been silent,or not sufficiently express.” Speaking of the succession per slirpes, he says, “Nothing is more clear in the Civil Law, than that grand-children even when alone, (although they descend from various stocks, and arc unequal in their numbers,) would take the estate of their deceased grand-father per slirpes, and not per capita. Suppose therefore, that Titius should die, leaving grand-children by three different sons already dead; to wit, three by one son, six by another, and twelve by another; each of these classes of grand-children would fake a third of the estate, without any regard to the inequality of the numbers in each class. But, as to this point in England, the Law Reports mention no judicial determination; yet it seems probable, that the Courts, in which distributions are cognizable, would order the division of an estate in such a ease to be made per capita; and this, partly from a motive of equity, and partly from a consideration of the intent
of the Statute, relating to the estates of intestates: for, the Statute
In a subsequent part of his Notes, (page 546,) he refers to Dr. Taylor’s Civil Law, and gives an extract therefrom, in which, (page 551,) it is laid down: 1st. That brothers and sisters alone, of the whole blood, succeed in capita, to the exclusion of the half-blood. 2<1. Brothers’ and sisters’ children, concurring with brothers and sisters, succeed in stirpes. Sdiy. Nephews alone succeed in capita, non in stirpes: for they succeed (now) in their own right, and not by representation. This I understand to be our Law, with the further provision to he deduced from it, that if any of them be dead, leaving issue, that issue is to come in or concur with those alive who arc in equal degree, but per stirpes.
In England, there was no policy, in regard to the support of their aristocracy, requiring that the personal estate should go as the real, and so they adopted the Roman Law in distributing it; and it is believed by this able writer, that though there is no adjudged case to that effect, that the sound construction of the Statute would lead the Courts to explode even the Civil Law doctrine of representation, except where it is necessarily resorted to, to prevent exclusion. But our Statute, so far as it expressly speaks, seems to adopt precisely that course. We have no aristocracy to support, no principle of policy which would require, that in any event the realty and personalty shall go in different ways. On the contrary, the great policy of the Statute evidently is, to seek in the ascending line, and in every direction, those for whom a supposed preference, arising from natural affection, might exist, and to give the whole estate real and personal, to them. It forms them into classes, and where a class consists of more than one, and all are alive, they take per capHa; if any are dead, leaving issue, which if it were not in the, class, would be excluded, the principle of representation is, in such cases, and only in such cases, resorted to.
This great, and leading policy of the Statute, it seems to me, is the polar star in this enquiry, and if steadily kept in view, will lead us to a sound and consistent construction of the Act, and will cover every possible case under it.
The Statute on which I shall make my observations, is that which is found in the first volume of the Eevised Code of 1819, page 355, which is the same as to the subject before us, with the Law as it
1st. The first section provides that the inheritance of an intestate shall descend and pass in parcenary to his kindred, male and female, in the folloiving course:
It shall go in parcenary, not subject to all tho incidents of estates in parcenary at the Common Law; for there, if one of two or more daughters is dead, leaving sons and daughters, the eldest son of such daughter would take joe?’ stirpes with the surviving daughters, i would, therefore, construe the word parcenary to mean in equal shares, as contradistinguished from tenants in common, and joint tenants. It is to descend then in equal shares to his kindred; wha t kindred ? Not to those in equal degree of consanguinity, though that is a very governing principle in arranging the classes, but according to the classes or course fixed by this Law. That is to s&y:
2d. “To his children, or their descendants, if any there be.” Coupling this with the sixteenth section, the intention of the Legislature was: That if all the children were.alive whether male or female, they should take equal shares, per capita; but if any child was dead, leaving descendants, those descendants are to lake by virtue of tho second section, and however numerous, would take per capita, and equally with the children, for they are in the same class with them, but for tho operation of the sixteenth section,, which provides, that where the issue of those children which are dead, come into partition with the living children, they shall takejoer stirpes, the share of their deceased parent.
But, suppose A. dies intestate, his children B. and C. having died before him, B. having left three children, and C. six, and ail these children are alive; how docs the estate go? These are de seendants of tho children of the intestate. They are expressly-named in the second class, and by the first section, arc to take equally, unless, as in this other case, the sixteenth section provides otherwise; but there is no provision at all there, for they are all equal, and can each take in his own right, and none are excluded. I3ut, suppose one of the children of B. is dead, leaving eight children, these arc descendants of the child of the intestate, and arc expressly called to the inheritance, by the second section, and they must lake per capita, unless they can be brought within the influence of the sixteenth section; they cannot be excluded altogether, nor can you refer them to tho rules either of the Common or Civil Law. They stand under the express words of our Statute, as inheriting equally with the eight surviving children of B. and C., and must each take one-sixteenth part of the estate, under the first and second
My opinion is, that we ought to apply the great principle of the 16th section to the» casé, to wit, that where some in equal degree arc dead, leaving issue, which issue are to come into partition with those alive, they shall take per stirpes. It is true, that I do not resort to the principle of representation here, in order to prevent the exclusion of such issue, because they are expressly included in the Law, but I resort to it, in fixing the share they are to take, so as not to counteract the great principle of seeking for all those who would be supposed to be the nearest objects of affection, and‘to give it in proportion to such supposed predilections, and in the proportions pointed out by this Act in similar cases. This, though, is equally a case omitted, or rather not expressly provided for by our Statute, with that before us, and we have no means of applying any just rule to it, except by extending the 16th section to it.
3d. “If there be no children, or their descendants, then to the father.”
4th. If there be no father, then to his mother, brothers and sisters, and their descendants, or such of them as there be.” Whoso descendants? Not those of the mother, by an after-marriage. They would be brothers and sisters of the half-blood, subject to the rules as to the half-blood; but descendants of brothers and sisters. There is no mother, though, nor brothers nor sisters, but there was a brother and a sister, who are dead, the sister having left four children, and the brother one. These, say, are all alive at the death of the intestate. They are descendants of a brother and sister, they are expressly called to the inheritance by the fourth section, and, according to the first section, they are to take equal shares, unless something in the Law prevents. The sixteenth section, though, makes no provision for a succession amongst these parties, per stirpes. There was no necessity; they are all descendants, and stand qnder the Act by that description, and are entitled to the inheritance, and they are moreover all in equal degree of consanguinily, and it is to be presumed, equally in the affections of the intes
This is the more desirable, if it will, as we arc told it will, be consonant to the doctrines heretofore generally understood and acl- , ed on.
This will be the safe course. Nothing that has heretofore taken place, will be unsettled. We cannot act prospectively, as the Legislature can; we may unsettle many estates long since settled. The Legislature, if we err in the construction, can put us right, which, acting prospectively, can do no injury. The real and personal estate can go together under the same Law, as was intended, and this will be agreeable to the great principles of the Act above noticed.
If we do not do this, but resort to the Common Law jus representations, to ascertain the proportions, what are we to do with the personal subject in this case? If we give it to the same persons directed by the Statute, still we cannot give it in the proportions directed by the Statute; for, we look not to the Statute, but to the Common Law, for these proportions. They are different in this ease, from what the proportions were according to the Statute of Distributions; and we must then do violence to the Act, either by expounding it to mean, that the personal subject shall go to the same persons, and in the same proportions, to whom the land goes, whether the proportions are fixed by the Statute, or by the Common Law; or, we must consider the Statute of Distributions also, so far, as unrepealed, and vary the proportions, or we must consider it as repealed, and that the case is one not within the present Statute, and consequently, that no distribution can be made. I think my construction most consistent with the true intention of the Legislature, and that the Decree must be affirmed.
This is a controversy about the division of the estate- of Anthony Gardner, who died intestate, without issue, without father, and without mother, brother, or sister, living at the time of his death, lie had had a brother and a sister, but both of them had died before him, leaving issue; and it is among the descendants of his brother and sister, that his estate must be divided. The brother left an only child, E. M. Davis, the Appellant: the sister left two sons, living at the death of Anthony Gardner; two grand-children by one deceased daughter, and six grand-children by anotherdeceased daughter. It tints appears, that the relations of the intestate, who were to inherit his estate, were one niece on the the part of his brother, two nephews on the part of his sister, and the children of two deceased nieces on the part of his sister. No question can possibly be made as to the right of any of these relations to participate in the inheritance; for, being descendants of a brother and of á sister, they are called to the inheritance by the express word's of the fourth section of our Act of Assembly directing the course of descents. But, the question is, as to the portions in which they arc to participate. It was not pretended by any of them, that the estate was to be divided them all share and share alike. It was on the other hand contended by the Appellant, that the intestate, havingliad only one brother and one-sister, both of whom died before him, leaving issue, the estate was to be divided into moities; one of which she claimed for herself, as the only representative of her deceased father, the brother of the intestate; leaving the other moiety to be assigned to the descendants oí the sister of the intestate, as representing her. The Chancellor, however; decided, that the estate ,-thoukl, in the first place,, be divided into five parts, according to the original number of the nephews aud nieces of the intestate, and that one of these parts- should be assigned to the Appellant; one to each of the nephews on the part of the sister;- one to-the-descendants of one of the deceased nieces; and the other to the descendants of the other deceased niece. And the question is, as to the propriety of this decision.
This is a very important question; and this is the first occasion on which the Courts have been called on to decide it. Such a question could hardly have arisen before the first of January, 1787; for, until that time, the Common Law regulating the descent of real estate, and the Statute of Distributions regulating the distribution of personal, were too-plain to admit of doubt. But, the Common Law paid hut littie regard to the supposed preference of the intestate..
1. That henceforth, when any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend, and pass in parcenary to his kindred, male and female, in the following course; that is to say:
2. To his children, or their descendants, if any there be:
3. If there be no children, nor their descendants, then to his father:
4. If there be no father, then to his mother, brothers and sisters .and their descendants, or such of them as there be:
5. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties; one of which shall go to the paternal, the other to the maternal kindred, in the following course, that is to say:
>6. First to the grand-father:
7. If there be no grand-father, then to the grand-mother, uncles and aunts, on the same side, and their descendants, or such of them as there be:
8. If there be no grand-mother, uncle nor aunt, nor their descendants, then to the great grand-fathers, or great grand-father, if there be but one:
9. If there be no great grand-father, then to the great grand-mothers, or great grand-mother, if there be but one, and the brothers and sisters of the grand-fathers and grand-mothers, and their descendants, or such of them as there be:
10. And so on in other cases, without end; passing to the nearest lineal male ancestors, and for want of them, to the lineal female an
Then follows a section, declaring that none shall inherit, except, children of the intestate, unless in being at the intestate’s death.
The next section provides, that if there be no paternal kindred, the whole shall go to the maternal; if no maternal, the whole shall go to the paternal; if none of either, the whole to go to the wife or husband; and if the wife or husband be dead, it shall go to her or his kindred, in like course as if such wife or husband had survived the intestate, and then died entitled to the estate.
The next section designates the manner m which the whole and half-blood shall take.
There are some other provisions, which will be hereafter noticed for a special purpose.
These details are so minute, and at the same time so comprehensive, that it is believed to be impossible to conceive a case of intestacy, that is not expressly provided for by the Act, so far as relates to the persons, or classes of persons, who are to inherit. As to the persons, or classes of persons, therefore, who are to inherit, it may bo justly inferred that the Legislature intended to provide by the Act of 1785, a complete and perfect system, so as to render unnecessary and improper, a reference to anji other Code or System of Laws whatever. And as there was no longer any good reason why the distribution of personal, should be different from the descent of real estate, the same Legislature, by a subsequent Act, declared that the personal estate, after payment of debts, and provision for the wife, shall be distributed in the same proportions, and to the same persons, as lands are directed to descend in and by the Act directing the course of descents.
But, although the course of descents of real, and the distribution of personal estate, is rendered thus full, complete and perfect, as to those persons who shall be the distributees of the one, and the heirs of the other, yet it is manifest that the provisions of the Act are not equally full, complete and perfect, as to the proportions in which the estate is to be divided among those who are called to its participation. The express provisions of the Act, so far as relates to this subject, are far from embracing all the cases which may occur. The only part of the Act which expressly relates to this subject, is the 14th section of the Act of 17S5, answering to the 16th section of our present Law. It is in these words; “ And, where the children of the intestate, or his mother, brothers and sisters, or his grand-mother, uncles and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ar>
If the great and wise men who framed our Statute of Descents, had intended to lay down in the Statute itself, a general rule, or a principle furnishing a general rule, for regulating the proportions in which an estate is to be divided among the different heirs, they would have effected their object in terms precise, yet comprehensive so. as to admit of no question; as they had done in other parts of the same Statute, in relation to the persons, or classes of persons, who arc to inherit. But, are we to suppose that they intended to leave us without any general rule on this important subject, because none is laid down in the Statute. Such a supposition is too disparaging to them, to be entertained even for a moment. On the contrary, the absence of a general rule, in the Statute, is proof conclusive to my
If the Common Law be in force, it contains a principle, familiar to us all, that will remove every difficulty, and solve every question that can possibly arise concerning the question in controversy. That principle is, “ that the lineal descendants, in mfinitum, of any person deceased, shall represent their ancestor: that is, shall stand in the same place as the person himself would have done, had he been living.” 2 Bl. Com. 216. Let us apply this principle to this case, in order to test its operation. If the brother and sister of JJnihony Gardner had survived him, they would have shared his estate equally, by the 4 th section of the Act. But both of them being dead, leaving descendants, those descendants will represent .their respective parents; that is, will stand in the same place as they would have done, had they been living. One half of- the estate, therefore, would be assigned to the descendants of the brothel’, and one half to the descendants of the sister. And in making the subdivision among the descendants of the brother and of the sister, if it should happen that any of them shall have died, leaving descendants, these last will also represent their parent, by standing in the .same place as he would have done had he been living; for, the principle of representation, extends in mfinitum. Thus the Appellant, E. M. Davis, the sole descendant of the brother, and representing him, would be entitled to the full moiety which her father would have taken, had he been living. The descendants of the sisters representing her, would take among them, the moiety that the sister herself would have taken, had she been living. Bu.t, as some of ■these descendants of the sister were dead, leaving children, who would represent their parents, the moiety which would have gone to the sister, had she been living, would be divided into four parts, according to the original number of her children, one of which would go to each of her two surviving children, and as to the other two parts, one of them would be divided equally among the children of one of her deceased daughters, and the other among the children of her other deceased daughter.
But the question still recurs, has this Common Law principle of representation been repealed? I have admitted that the Legislature intended to provide, by the Statute, a full, complete, and perfect system, so far. as relates to the designation of the persons who were to inherit: and I believe that there never was any human intention
Judge Pendleton’s opinion in Browne v. Turberville, 2 Call, 390, is stronly relied on by those who advocate the total abrogation of the Common Law. No man is more disposed than 1 am, to respect the opinion of that great Judge. But his opinions, like the opinions of all other Judges, must be considered in reference to the questions that arc presented to them judicially. When they go beyond the very point that is presented by the case they are called on to decide, they are extra-judicial, and-cease to be authority. The question in Browne v. Turberville, had no reference whatever to the Common Law principle of representation. It was a question as to the persons who should inherit; and it was contended in that case, that it was the Common Law, and not the Act of Assembly that should determino the person who should be the heir. In deciding this question, ho said, that “ the Act of 1785, has totally done away the Common Law, as to the course of descents;” and that under that Act “ no possible case, not provided for, can happen, so as to let in the rule of the Common Law.” Ho also says, “ the rights of primogeniture are wholly abolished, and wherever there are more than, of of kindred to the shafe equally in the succession.” But this last observation of Judge Pendleton, so far as it would seem to establish a rule, that equality of degree of kindred, shall produce equality of partition, is liable to the general remark made above, that going beyond the point before the Court, it is not to be regarded as authority. There was no question in that case, as to the proportions in which those clearly entitled to the estate, should divide it. And I think it perfectly clear, that in making the observation about equality of partition, Mr. Pendleton had no reference to the difference between a succession per capita, and a succession per stirpes; but was merely alluding to the division of estates among the many persons who arc made heirs by our Law, as contrasted with the sole succession by primogeniture in England. His mind was bent upon the question, who was to be heir, and not upon the question, whether, of many persons admitted to be heirs, some should takeper capita, and someter stirpes.
Judge Tuckeii also, in Templeman and Steptoe, I Munford, 339, uses very strong expressions as to the Act of 1785, having entirely rescinded “all former Rules and Canons of inheritance, and succession to estates, real and personal, within this Commonwealth,
The present is the first case m which the question has been judicially presented, whether the Common Law principle of representation, or succession per stirpes, is still to bo looked to as providing for the cases not Specified and provided for by the Act of 1785; or, whether that part of the Common Law has been abrogated by the Act of 1785: And in the absence of authority, we must decide it on principle.
I have already endeavoured to prove, by the positive enactments of the Act of 1785, an intention in the Legislature to leave the Common Law, as to this principle, unrepealed. But, the subject is susceptible of another, and perhaps a stronger, aspect.
A former Law, whether Common or Statute, can be repealed or abrogated, only by express terms, or by necessary implication. It is not pretended, that the Act of 1785 abrogated the Common Law principle now under discussion, by express terms. If it has been abrogated at all, that effect has been produced by necessary implieacation only, on the well known principle, that leges posteriores priores contrarias abrogant. But, the repugnance between two Laws, that is to produce that effect, must be such, that the two Laws cannot stand together. And as it is the repugnance that works the repeal, the repeal will be limited to the extent of the repugnance. Those parts of the former Law, not repugnant to the new Law, remain as much in force, as if the new Law had never been adopted. Let us apply these principles to the case before us, and see how far, and how far only, they will carry us. The preference given by the Common Law, to males over females; the respect paid to primogeniture, and to the blood of the first purchaser; the exclusion of the ascending line, and of all collateral relations of the half-blood: all those parts of the Common Law are cléarly repugnant to the provisions of the Act of 17S5, and are admitted by all to have been consequently done away. But, the" Common Law principle of representation is repugnant to no principle of the Act of 1785. On the contrary, it is recognized by that Act, and expressly applied by it to several cases therein specified. It is applied expressly to every case where “part of” any particular class of persons (provided for by previous sections of the Act,) “being dead, and apart living*
If it ho asked where then was the necessity for the fourteenth section of the Act of 1785, (the sixteenth in our present Act concerning Descents,) the answer appears to mo to be obvious. The second, fourth, seventh, ninth and tenth sections of the Act of 1785, (corresponding to. the same sections in the present Law,) had directed that the estate should descend to certain classes of persons, “and-to their descendants.” Thp Legislature foresaw, that if some of the of a class were dead, a question might arise whether, under the broad terms of these the of those come into the partition per capita, with those persons of the class who were still living. And the- sole object of the fourteenth section was to prevent such a question being made. It therefore declared, in substance, that when none but persons of a given class come into the partition, they shall take capita; but, that when some of the persons of a class are dead leaving issue who have right to come into the partition with other persons of the class who are still living, that then such issue shall not take per capita, but per stirpes, or by stocks.
As to the collateral line, however, neither the Statute of Distributions, nor the Civil Law, tolerated the principle of representation, except, in a single case, and that was where the children of a brother, or sister of the intestate come into partition with a surviving brother or sister of the intestate. In all cases, among collaterals, a different principle prevailed, viz: the principle of equality of distribution among “ every of the next of kindred, to the intestate, who are in equal degree;” a principle introduced into our Statute of Distributions, by an express and positive enactment. Act of 1705, ch. 7. This principle as to “ the next of kindred,” is unknown to the Common Law course of descents, and also to the Act of 1785. Both at Common Law, and according to the Act of 1785, concerning descents, the principle of representation prevailed in infinitum, even among collaterals. ■ And this is evident from the fact, that the descendants of a brother of the intestate, however far such descendants may be removed from the intestate, will be preferred to the grand-fathers; and the descendants of uncles and aunts, however remote, will be preferred-to the great grand-fathers. If it had been intended to adopt the principle of equality of partition wherever there was equality of degree of kindred, surely those who drew our Statute of Descents, would have introduced some pro
Upon the whole, I am of opinion, to reverse the Decree of tho Chancellor, with costs, and to remand the cause, with directions that the estate of Anthony Gardner be divided into two moieties, one of which shall be assigned to the Appellant, as representing her father, the brother of the intestate, and the other to be assigned to the descendants of the sister of the intestate, as representing her.
Great research has been employed, and some refinement indulged in, to come to very opposite conclusions on the question before the Court; nor is it for mo to decide on the merits of a controversy which I am unable to perceive to belong to the decision to be pronounced. Our Statute of Descents, on which it must depend, appears to mji understanding, to have enacted a course of descents, independent both of the Common and Civil Law. Its having conformed either in some particulars, docs not change this character of it. A. revolution, on principles derogatory both to the Common and Civil Law, was to be provided for by the enactment of a course of descents, in the general, foreign to both: and when we are called upon to decide a case, not expressly noticed by the Statute, the better rule for its construction may be extracted from the principles and analogies that may be found in it, than either from the Common or Civil Law. The cardinal Canons of the Common Law of Descents are expressly abrogated by our Statute, as inconsistent with, and repugnant to, our institutions. The Jus representations of the Common Law, which, it is said, is now to be resorted to for the purpose
In the case of Templeman v. Steptoe, the question whether tho supposed omission in the Statute to provide for the case before the Court, was to bo remedied by a recurrence to the Common Law, was obviously before tho Court; that the Judges so considered it, cannot be doubted, or the expressions used by them would have been entirely irrelevant. Judge Tucker said, that by the Act of 17S5, all former Rules and Canons of inheritance and succession to estates real and personal, within this Commonwealth, whether established by Common Law or by Statute, were entirely rescinded, abrogated, and annulled, and that they cannot be revived in any manner, but by some express legislative provision for the purpose. So decidedly did he hold this opinion, that he preferred to leave the estate in abejonee during the life of the mother of the intestate to a resort to tho Common Law. Judge Roane, to support the construction he gave to the Statute, said, “that implication may be so strong and necessary, as to be equivalent to an express declaration of the Legislature, and this the rather as the 1st soetion of the Act of Descents purports to provide a rule of inheritance as to all cases, which idea is entirely supported by
Nor will the distinction which is taken between the persons who are to take the inheritance, and the amount of the portion to which they are entitled, obviate the force of these decisions, or weaken the reasons on which they are founded. If you are not to look to the Common Law for the persons who are to take the inheritance, because it is abrogated by the Statute, you cannot look to it for the portions of the inheritance to which they are entitled, for the same reason. The Statute would be truly imperfect, if it has not provided for both. If. the Common Law is to be resorted to for the latter, and thereby to fix the amount of the portion, the principle is to be let in, that the lineal descendants, in infinitum, of any person deceased, shall represent their ancestor. The character of the Statute would be essentially changed, its regard to natural affection, and pre ference for the next of kin to the intestate, would be overruled by the Common Law, to which its essential provisions are repugnant. That the eighteenth section of our Act, which declares that it shall be no bar to a party, that any ancestor, through whom he derives his descent from the intestate, is, or hath been an alien, is a recognition of the existence of the Common Law of Descents, I think, is equally unfounded. The Common Law in regard to aliens, was no part of the Common Law of Descents. It was founded on an entirely different policy, a policy repugnant to the spirit of our institutions, and to our Act of Descents, which regards natural affection, wherever the object of it may be, and was required to be abrogated by our Statute, as being in conflict with its spirit and principles. In every point of view, both upon reason and authority, I
This construction of the Statute is not so violent as in the cases cited. If in any of the cases npt expressly provided for by the .Statute, we can get a principle applicable to the cases expressly pi-ovided for, we are at liberty to apply it to cases not expressly provided for.
On this construction of the Statute, I think the Decree is correct* and ought to be affirmed.
Co. Litt, and Black Com. Collingwood v. Pace, 1 Lev. 59, in the Exchequer Chamber, loth and 11th Car. 2, in which it was held by seven Judges against three, that the alienage or attainder of the common ancestor, before the birth of his children, would not impede a descent between them, a conclusion ever since adhered to, contrary to the opinion of Lord Coke, in Co. Litt. 8. a.
By Doctor Lane, in Blackborough v. Davis, 1 P. Wms. 48, father preferred to mother. Per Holt, Ibid. Coplestone v. Coplestone, 2 Show, 307.
Vulleus, (or Vultijus) 375. If a child died without descendants, the father took his estate, (if he had not been emancipated,) jure patria potestatis: if he was emancipated, contracta jiducia, the father succeeded ut agnatus,- and if emancipated without such stipulation, the father was preferred by the Prstorian Edict “unde decern;” so that he was, in all events, preferred to all other ascendants and collate t rals.
Blackborough v. Davis, 1 P. Wms. 48, by Lord Hardwicke.
c) Moor v, Barham, 1 P. Wms. 53: Grand-father on tl;e father’s side, and grand’ mnthev on the mother’s side, take equally together.
By Sir Joseph Jektm, Master of the Rolls, in Mentney v. Petty, cited 1 P. Wms. 27.
Domat, 649: Vulteius. (or Vultijus) 378, 379.
Coopev's Justinian, 394.
Pett's Case, 1 P. Wms, 25; Bowers v. Littlewood, 1 P. Wms. 594.
Poole v. Wilshaw, (1708) Novbury v. Vicars, (1749;) Evelin v. Evelin, (1754;) cited in Cooper’s Justinian, 397.
Thomas v. Ketteriche, 1 Ves sen. 333. where Lord Hardwicke. takes notice of Wilshaw’s Case; Durant v. Prestwood, 1 Atk. 454; Stanley v. Stanley 1 Atk. 457; Pett v Pett, 1 Salk. 250.
1 Ventris, 316.
Lloyd v. Tench, 2 Ves. sen. 213.
Walsh v. Walsh, Eq. Ca. Abr. 249; Davers v. Dewes, 3 P. Wms. 50.
Northey v. Strange, 1 P. Wms. 343: Davenport v. Hanbury, 3 Ves. 257. Butler v Stratton, 3 Bro. C. C. 367.
1 Domat, 562,
Per Lord Holt, in Blackborough v. Davis, 1 P. Wms, 50.
Oct. 1789, ch 30 sec 13, and 13 Hen. St. L 40.
In Proud v. Turner, 2 P. Wms, 360. The sun of a child adviuie. 1!, held Co be hound to brimr the advancement Into hoU.lrjnt.
Coke Litt. 11, b If a man has issue, a son and a daughter, and the son pur. chase lands, and dies without issue, the daughter shall inherit the land; but, if the iiither has issue afterwards, / no matter how long after,) a son, this son shall outer into the land, as heir of his brother, and if he has issue, a (laughter, and no son, she shall be a co-parcener with her sister.
Without consideiing Common Law, have happened under our Statute, which only designates brothers and sisters, and their descendants, or such of them as there be at the death of the intestate*
Co. Litt. 166, b.